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Archive for August, 2011

An ambitious study of drug courts was recently completed. Funded by the National Institute of Justice, several collaborating organizations analyzed more than twenty drug courts over a five-year period. Not surprisingly, the study contains many interesting observations, but what is particularly noteworthy is the correlation between judicial ethics and the effectiveness of those drug courts. That is, almost all of the following findings would have been required or (at a minimum) encouraged as a matter of judicial ethics:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated themmore fairly than the comparison group, including demonstrating greater respect andinterest in them as individuals and greater opportunities to express their own voice duringthe proceedings. Furthermore, when offenders have more positive attitudes toward thejudge, they have better outcomes. This was true across all offender subgroups whenexamining demographics, drug use history, criminality, and mental health. A separateanalysis drawing upon the results of structured courtroom observations found, similarly,that drug courts whose judge was rated by members of the research team as exhibiting amore positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic,consistent/predictable, caring, and knowledgeable) produced better outcomes than otherdrug courts. Both analyses reaffirmed the central role of the judge.

Judges may well have performed these duties as a matter of principle, but it is doubly rewarding to see the principles leading to good results. In light of the above conclusions, the study recommends these four points for drug court judges:

Hold frequent judicial status hearings; in light of previous research on this topic, consider increasing the frequency of status hearings for “high risk” participants in particular.

If the jurisdiction allows it, choose drug court judges carefully. Drug courts will be best served if administrators intentionally assign judges to the drug court who are committed to the model and interested in serving in this role.

Monitor “client satisfaction” with the judge.

Train judges on best practices regarding judicial demeanor and regarding how to communicate effectively with program participants.

Professor Ron Rotunda’s most recent article, Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United, can be found here, and the abstract follows:

Recent times have witnessed strong lobbying efforts to move states away from electing judges to appointing them. Opponents of judicial elections repeatedly argue that the general public does not want judges who are bought by contributors. Of course, voters do not want those judges, yet the electorate repeatedly rejects efforts to move away from an elected judiciary.

When voters do choose judges, the conventional wisdom assures us that the results will be less partisan if the judges run in nonpartisan elections – where candidates run but do not disclose their political affiliation. However, empirical evidence does not support this frequent claim. Studies repeatedly show that judges elected in partisan elections are substantially more likely to be independent than judges selected in nonpartisan elections.

People who bemoan judicial elections often attack two U.S. Supreme Court decisions that appear to politicize the judiciary. One is Republican Party v. White (2002), which recognized the free speech rights of judicial candidates. They similarly criticize Citizens United v. Federal Election Commission (2010) as a pro-business decision that recognizes first amendment rights of corporations or individuals to spend money to engage in their political speech favoring their candidates. Yet, White simply evens the playing field by overturning restrictions that were really a form of incumbent-protection legislation. So too, the controversy surrounding Citizens United is misplaced. It does not favor business at the expense of unions. Instead it gives all entities, including unions and individuals, free speech rights that the government cannot restrict, which is why the ACLU supported the position of the petitioner and opposed the Federal Election Commission’s regulation. Still others view Caperton v. A.T. Massey Coal Company, Inc. (2009) as a case that will force judges to disqualify themselves if a party is related to an independent group that had supported the judicial candidate. It is too soon to judge the effect of Caperton, but there are plenty of indications in the five-person majority that the case has little growth.

It i[s] inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in these campaigns, given that so much money rides on the outcome. As long as politicians and judges decide billion dollar issues, there will be multi-million dollar campaigns. Fortunately, the empirical evidence to support the assertion that those who pays the money gets the judge they wants is decidedly mixed.

Emily M. Janoski-Haehlen recently posted a draft of The Courts Are All a‘Twitter’: The Implications of Social Media Use in the Courts. Her draft can be found here, and a general abstract follows:

Tweet, poke, post, friend, like, blog, link, comment, and share: the opportunities to communicate electronically using social media tools seem never ending. Facebook, Twitter, YouTube, MySpace, and LinkedIn are just a few of the social media sites that allow people to communicate and “connect” with others across the world in seconds. E-mail and sending text messages are two other ways to communicate electronically, but neither e-mails nor text messages can keep up with the speed, accessibility, and popularity of social media. Social media is entrenched in our lives as evidenced by the fact that adult profiles on online social media sites are up from only 8% in 2005 to 47% in 2010. The legal profession has also jumped aboard the social media bandwagon with 40% of judges reporting they are on social media sites and 56% of attorneys reported having a presence on social media sites. Whichever “social networking” or communication method is chosen by an individual, the technology has made that communication instantaneous. Unfortunately, social media communication is also dangerous to the integrity of the courts.